As a lawyer, I’d like to hope that there’s something more going on. Let’s say the hospital is pretty confident that it didn’t do anything wrong, and that the plaintiff doesn’t deserve any payment. If the hospital argues that the twins are human beings, then they may find themselves held liable. However, by arguing that the law says that the twins are not human beings, it forces the court to make a legal decision that is win-win for the hospital: either the court upholds the law and the hospital is held not liable (as it may believe that it truly is), or the hospital loses (and pays a few million dollars) and unborn children are legally recognized as human beings.

The hospital can argue in good faith that fetuses are not persons with legal rights, as it is certainly true that the law doesn’t recognize any rights for the fetus. That’s not a “should” argument, but an “is” argument. If one wants to “set precedent bolstering anti-abortion legal arguments,” this is the correct way to go about it. Settlements and agreed dispositions don’t set precedent.

This may not be what’s going on at all, but I wouldn’t be surprised at all if it is. I am a lawyer, but I don’t practice tort law, so take all this with a grain of salt.

Meg

“According to the Westword, one of the defendants’ lawyers, Jason Langley, argued in a brief that the judges “should not overturn the long-standing rule in Colorado that the term ‘person,’ as is used in the Wrongful Death Act, encompasses only individuals born alive…therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses.” – If that is being accurately reported, it is a “should” claim, not an “is” claim, and that is a problem.

Wolfwood

One other thing: the Trayvon Martin coverage should be a good warning to people not to put too much trust in the media’s account of a case, especially at the outset. This article goes out of its way to talk about how rich the hospital and its parent association are, perhaps to set up a David-vs-Goliath dramatic element. We don’t know, from the article, virtually any of the details about why the doctor didn’t respond, what information the mother gave at the hospital, or whether the hospital has already offered some huge amount and this was rejected. We also don’t know, unless we have read the pleadings, whether the article is fairly summarizing the hospital’s argument.

Andy

Mark – When coupled with your other post about the teacher in the Catholic School being fired because she was pregnant – and could cause a scandal and a hospital fighting to save money and two twins pass – is it any wonder why many Catholics do not see the urgency to end abortion, why many Catholics and non-catholics see the church and its institutions as hypocritical. Yes and lets remember the Cardinal in LA, the Bishop in Kansas and the priest in Conn. Damn if a person planned to point out hypocrites it couldn’t have been done any better. I guess I should add to that closing Catholic Schools, but buying a Crystal Cathedral – it seems that the list is indeed becoming endless.

Sorry – I was casting no aspersions – I was in a boring faculty meeting about Middle States Accreditation – and wasn’t careful. Thank you

http://barryhudock.wordpress.com/ Barry Hudock

I think Wolfwood’s right. The article notes that the hospital’s lawyers are “arguing state law protects doctors from liability concerning unborn fetuses on grounds that those fetuses are not persons with legal rights.” That’s a factual statement. Maybe it’s an effective way to make a valid point about inconsistency in the law. It certainly would be pathetically hypocritical for the state to find the doctor guilty of the death of three persons in this case, when the mother, under ordinary circumstances, could have walked into an abortion clinic on the same day and legally had her twins terminated.

Jamie R

Conceptually, the argument runs in reverse. That is, Colorado law does NOT immunize someone from tort liability for negligently killing a fetus. Rather, Colorado doesn’t create any prima facie liability for negligently killing a fetus.

MichaelP71

Wolfwood… Why would we use a human being as a pawn? Doesn’t the liberated liberal class use human beings as pawns all the time in euthanasia, abortion, fetal stem cells, etc…? When a human is a human she is all of the time whether it benefits or hurts us…right?!

http://barryhudock.wordpress.com/ Barry Hudock

MichaelP71, also an excellent point.

Wolfwood

MichaelP71, How is the hospital using the children as pawns? They have been brought into a lawsuit, and they are required to respond with a legal argument. Perhaps it would have been better to say “As a Catholic hospital, we believe that life begins at conception, but the law of Colorado does not recognize a fetus as a human being,” but the first half of that statement is not a legal argument and doesn’t, technically speaking, belong in a court pleading. The alternative is to declare that, even though the hospital may not believe that it has done anything wrong (and we have only the father’s claim, as relayed by an inflammatory article, that it has), it should pay money to the father. Is that just?

Based on the information we have, it is entirely possible that the hospital did everything in its power to save the lives and that it bears no fault. It is also possible that the father, wracked with grief (and conceivably even guilt), wants money to soothe his conscience or even to just make a cavalier profit. We really don’t know. If so, however, the (inevitable) millions paid by the hospital would be money not available for treatment, hiring good doctors and staff, and so on. It would also mean that anyone, no matter how dishonest their claim, could get free money from this hospital.

It comes down to this: facts and law are not the same thing. It is possible to be entirely good and yet legally liable, and also to be thoroughly malicious and yet not break any laws. That these twins were living human beings is a fact, but that Colorado doesn’t recognize this is the law. This is win-win (or at least, win-draw) for the pro-life cause.

Meg

If the hospital didn’t do anything wrong, shouldn’t that be the basis of their defense? Why get into the personhood thing at all if the facts are on you side? I understand that it is a lawyer’s job to put forth every possible defense on his or her client’s behalf, but shouldn’t the client intervene here and say that some defenses are not acceptable?

http://irenist.blogspot.com/ Irenist

Another lawyer here. Wolfwood, you make sensible points. Thank you for contributing them. However, what I think the legal arguments here are evading is Mark’s prophetic moral point. Nothing is stopping this hospital from settling the case with the plaintiff. Nothing is stopping the hospital from saying to its attorneys, “Thank you for your hard work in coming up with this argument about fetal non-personhood. We know that under attorneys’ professional ethics, you are required to zealously represent us by finding any legal argument that will allow us to prevail. You have done your job. However, it is our job as a Catholic institution to tell you that, as your client, if the only way we can prevail is to make this immoral, dehumanizing argument about the unborn, then we would prefer to settle the case. Please contact the plaintiff and negotiate a settlement.” This supposedly Catholic hospital has failed to do that, and is thus causing grave public scandal. Mark’s remonstration is entirely appropriate.

Wolfwood

Maybe. Do we know what the plaintiff asked for? If he asked for, say, 100 million dollars, then should the hospital have settled? If they gave any money at all over an unfounded claim then they are setting themselves up to be sued out of practice by unscrupulous plaintiffs (and their attorneys, who can smell blood in the water).

Two things come to mind: 1. Jesus tested the Pharisees by asking them what the Law said after they began a dispute with him. This seems similar. 2. There has to be a dispute for the legal system to take action. For the segregation of the Montgomery buses to come to the attention of the courts, Rosa Parks had to break the law. If the hospital were to simply settle (especially if they don’t believe they did anything wrong), there would be no opportunity for court to rule on whether or not the Colorado law on the unborn needed to be overturned.

Dennis Mahon

The hospital is in the Diocese of Pueblo: Most Reverend Fernando Isern, D.D. Bishop of Pueblo Contact Information for Most Reverend Fernando Isern, D.D. : (719) 544-9861 ext. 122officeofbishop@dioceseofpueblo.org It’s up to Catholics to light a fire under the bishop – because the pro-aborts never will.

Oregon Catholic

Wolfwood, I hope you are right. I do appreciate your argument that helped me look at the case with a different eye and I’m less willing now to jump on the condemn-the-hospital bandwagon, yet.

But… when I read about the case my first thought was that this was exactly what the Church did during the pedophile scandal, (Bishop Finn particularly comes to mind) some bishops took advantage of every legal angle they could to protect themselves (the Church) from the law. I have yet to see any moral or legal justification for it other than protecting assets and reputation.

I’d love to know if you can make a similar legal argument for fighting a priest pedophile charge (other than the priest being innocent of course). Sincerely, that’s not a snark. I’d just like to know if there is another way to look at what so many bishops have done that might restore a little respect.

Oregon Catholic

As a medical person I’d like to add that I cannot conceive of any reason why an ER doctor would wait on an attending or a specialist before performing a cesearean if he/she knew the babies would die. So that alone, would remove at least some culpability from the obstetrician and place it on the ER doctor. Still makes the hospital partially responsible however.

Jamie R

I don’t trust the news article. Journalists are as capable of reporting on the law as they are on theology and science. That is, not at all. There are no published opinions from this case, and neither LexisNexis, Westlaw, nor Bloomberg have any of the court documents filed for this case. Without some independent verification that this is what happened, I would not believe the newspaper here, for the same reasons you shouldn’t believe the newspaper when it reports on the Vatican or on how chocolate cures/causes cancer.

Jamie R

Also, this happened in 2006, and there are no news stories before yesterday, which is odd, except for a brief blurb, dated August 16, 2012, from the appeals court affirming the original judgment. The story doesn’t tell us what happened at trial level (dismissal? summary judgment? directed verdict?), which defendant is raising the argument, whether there’s an insurance company raising the argument, or why the plaintiffs think Colorado’s wrongful death statute covers fetuses. Is Kennedy Childs the hospital’s lawyer, the doctor’s, or an insurance company?

Jamie, you make an important point here. We don’t know to what extent the hospital’s insurance company is calling the shots. They may be on the hook for the defense and to pay out anything the husband may get, and so would be the party financially interested in making all of the available arguments, especially a winning one. Although the hospital could tell its insurer that its legal arguments are immoral/inconsistent with its code of conduct/ damaging to its reputation, it may not have the pull necessary to change the insurer’s mind. Just because its lawyer is making the argument, doesn’t mean the hospital is happy about it.

Advocate

Yet another lawyer here. I can say with a high degree of confidence that the hospital’s insurance company is calling the shots on this defense. If so, there is nothing the hospital can do to change the legal arguments short of forgoing their insurance coverage on the lawsuit.

Jason C.

Absolutely correct. Unless the hospital’s self-insured, their policy will contain a clause obligating it to cooperate with the insurer in the insured’s (i.e., the hospital’s) defense. The hospital doesn’t get to waive the insurer’s rights to argue that the twins cannot sue based on Colorado wrongful death law.

Even worse is, as a party involved in litigation, the hospital is likely legally barred from going around blabbing about being insured and, thus, not really the ones to blame for making the non-personhood argument available under Colorado law. So it can’t actually defend itself from the newspaper headlines it’s getting!

ajesquire

I used to handle malpractice cases.

Colorado law provides that you cannot seek recovery for the wrongful death of a fetus UNLESS the fetus is shown to have been viable.

There is no absolute ban on wrongful death claims for fetuses, per se.

The Hospital, if it believes it has a valid defense on either causation or the standard of care, could simply concede that the 7-month-old fetuses were viable and proceed to defend the case. This would be consistent with what the Church seeks to impose on the rest of us.

If the Hospital was performing elective abortions I have no doubt the Bishop would step in and order it to stop, fire whoever was doing them, possibly also excommunicate them, or at least strip the Institution of its Catholic affiliation.

Permitting the Hospital to take this legal position regarding pre-born life is little different.

Jamie R

What statute or case gives the plaintiff a right to recover here?

ctd

Another lawyer here . . . Let’s look at the consequence of not availing to the defenses available under the law. If the law does not allow wrongful death claims for pre-viable unborn children, then insisting, as the reporters and maybe the plaintiffs appear to be, that because the hospital is Catholic it should not claim that the child is not a human life is akin to insisting that the law’s defense not apply to a certain class because of their religious beliefs. That doesn’t make much sense either.

BTW, I am in, but not of, the archdiocese of Denver. I do not speak for the archdiocese, the archbishop, or anyone but myself. (I want to make this clear since at one point people were confused by my “handle”)

Oregon Catholic

I read the bishop’s statement but it doesn’t clear up any confusion on the hospital’s legal stance. They are unable to comment on an ongoing legal case, which could simply translate into “let us win this lawsuit first then we’ll explain (spin) how it didn’t really mean what it sounded like it meant and it’s all kosher. Sorry for mixing my religions.

Jamie R

There’s nothing to spin. Wrongful death actions are created by statute. The Colorado statute for wrongful death only applies to persons who have been born alive. Even when abortion was illegal, you couldn’t bring a wrongful death tort action for negligently killing a fetus.

Oregon Catholic

The hospital does not have to argue the point they are arguing if they are doing so because of an unwillingness to pay out money. If they could win on the merits of the medical care provided and the lack of any wrongful death from that care, then that’s what they’d be arguing. If the care was wanting and that’s what led to the deaths, then hiding behind the technicality of this statute is heinous.

If, as someone else pointed out above, this is a strategy to get the fetus-is-not-a-person statute thrown out, then I can see the larger value in it, even though it comes very close to doing the wrong thing for the right reason, which the Church still defines as always immoral.

Jamie R

There isn’t a fetus-is-not-a-person statute. There is a statute that defines “person,” and there’s case law about what that means for purposes of wrongful death.

Whether they met the standard of care is a question of fact for a jury. The hospital and the plaintiff would have to hire experts, there’d be a trial, etc. Even if they lose, it’s an enormous waste of everyone’s time and money. The hospital wins as a matter of law. They don’t need to hire experts. They don’t need to seat a jury. Colorado law is absolutely clear on the legal question.

In order for the hospital to win on the merits, there has to be a cause of action. If the plaintiffs don’t have a cause of action, which they don’t, then there aren’t any merits to win or lose on.

There’s absolutely no reason for the hospital to waste its money (which it uses to provide medical care) on a trial defending a cause of action that does not exist (assuming the news story is correct and the suit is wrongful death for the death of the fetuses). That’s just stupid. It would be evil to spend one dollar more defending this action than necessary, since each dollar spent defending a non-existent cause of action is a dollar they’re not doing something better with.

Oregon Catholic

Please tell me you’re not a Catholic.

Jamie R

I am Catholic. I’m not aware which part of being Catholic means disbelief in the rule of law. Letting plaintiffs win on nonexistent torts isn’t Catholic. Wasting the Church’s resources defending made-up torts, by trying the issue on the facts instead of on the law, also isn’t particularly Catholic, unless math is somehow heretical.

Fine, let’s require the hospital to win on the merits. What claim are they defending against? Which Colorado statute or case gives the plaintiff here a right to recover? What merits does the Church have to win on? Please give me a statute number or case citation.

NB: There isn’t one. There’s virtually no chance any reporting on this story has been honest, since only a very stupid plaintiff’s lawyer would attempt to sue someone without having a cause of action.

I even think the law is wrong on this point; some sort of wrongful death recovery for negligently killing a fetus in the third trimester would probably be good, since the current system means a doctor has less liability if he kills a fetus in the womb than if he injures him/her then delivers him/her. But it’s the Colorado legislature’s job to fix that. It certainly isn’t the defendant’s job.

And even if it is the defendant’s job, you know what it takes for this issue to get overturned? The Colorado Supreme Court has to hear this specific issue on appeal. Which means the hospital has to win on this issue. If the hospital wins on another point, then the Colorado Supreme Court won’t hear this issue.

Jamie R

Alternatively, let’s say one week you forgot to tithe, for whatever reason. Can I sue you for that?

Oregon law doesn’t recognize not-tithing as a tort. In secular terms, I’d have to be a profound idiot to sue you for it.

On the other hand, I’m assuming you think you should tithe. If you went to court, and told the judge that Oregon law doesn’t recognize the cause of action I have inexplicably sued you for, does that make you a hypocrite? Should you be required instead to spend hundreds of thousands of dollars hiring lawyers and experts to defend a non-existent claim?

Your position would require people to go to court and spend a huge amount of money defending a lawsuit every time someone made up a tort that the defendant privately thought might not be a bad idea. That’s wasteful. To the extent that the wasted money is diverted from any productive or good use, that’s evil.

An Aaron, not the Aaron

What gets me about this is that the Bishop only recently learned about this. I wouldn’t expect the Bishop to be informed about the deaths, as tragic as they are. I wouldn’t necessarily even expect the Bishop to be informed about the lawsuit. But didn’t it occur to anyone at the hospital to let the Bishop know they were making arguments in court that the press would have a field day with if/when the press finally got around to it? A little heads up when the case was in the lower appellate court (at least) would have been appreciated I’m sure.

Mr. Patton

This could be the most expensive 30 silver pieces of all time. It is going to be problematic arguing “violating our conscience” with this case and the affordable care act with the same breath. Good luck.

John

There’s nothing really to see here. Under law, something can be defined as one thing according to one piece of legislation, and something else under another piece of legislation. Happens all the time.

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